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Drawing a Line in the Constitutional Sand Between Congress and the Foreign Citizen Cybersquatter’

Citation

Forrest, HA, Drawing a Line in the Constitutional Sand Between Congress and the Foreign Citizen Cybersquatter', William and Mary Bill of Rights Journal, 461 pp. 1-26. ISSN 1065-8254 (2001) [Refereed Article]

Copyright Statement

Abstract

"Cybersquatting" on the Internet is a phenomenon that has warranted an amendment to the Trademark
Dilution Act of the Lanham Act. The undisputed omnipresence of the Internet, as well as the boundless possibilities
of infringement activity on the Internet, has made such an amendment inevitable, as well as necessary.
Congress' power to regulate trademark infringement activity, whether traditionally or on the Internet,
relies on the Commerce Clause of the United States Constitution. The author asserts that participation in the
Internet domain name registration process itself does not constitute the "commercial activity in commerce"
requirement of the Trademark Dilution Act; in turn, such an act does not constitute commercial activity for
the purposes of the Commerce Clause. Such analysis also depends on a careful look at the Internet's
uniquely amorphous and borderless structure, complicated by the fact that no one nation has clear control on
the Internet. Ultimately, this Note concludes that under traditional Commerce Clause analysis, foreign citizens'
registration of domain names with intent to sell those registered domain names does not substantially
affect interstate commerce, and that applying the Lanham Act to this activity is an improper application of
Congress' Commerce Clause power.